On Friday, U.S. District Court Judge Roger Benitez, a George W. Bush nominee, held that California’s long-standing ban on assault weapons violates the Second Amendment. The ban has been affirmed by the people of California, through both legislation and a ballot initiative, over the past 32 years. Benitez, however, derided the state’s interest in prohibiting these exceptionally dangerous weapons, condemning the ban as a “failed experiment.” His decision began with a now-infamous analogy comparing AR-15s to the Swiss Army knife, praising the semi-automatic rifle as “a perfect combination of home defense weapon and homeland defense equipment.”
But this dubious comparison is just the tip of the iceberg: Benitez’s 94-page opinion is riddled with bizarre and unsupported claims—even more so than his previous decision blocking the ban on the kind of high-capacity magazine used in the Thousand Oaks shooting. Below are five of the opinion’s most alarming and unbelievable assertions, from COVID misinformation to outlandish speculation that AR-15s are necessary to stop rape.
1. COVID vaccines are more dangerous than assault weapons. Benitez spilled a great deal of ink arguing that mass shootings involving assault weapons are “infinitesimally rare.” (At the same time, he argued California’s assault weapon ban has utterly failed to limit mass shootings, a contradiction he never attempts to square.) The judge reached his conclusion by discounting experts’ methods of counting mass shootings. In reality, the AR-15-style rifle, the quintessential assault weapon, was used in many of the nation’s deadliest mass shootings, including in Boulder, Las Vegas, Aurora, Sutherland Springs, Pittsburgh, and Sandy Hook; a nearly identical rifle was also used in the Pulse massacre. Notably, the weapon was also used in the 2015 San Bernardino attack, which killed 14 Californians. Despite this record of slaughter, Benitez wrote that “contrary to public misinformation, mass shooting events are rare events.” Benitez added, “More people have died from the Covid-19 vaccine than mass shootings in California.”
As the Washington Post’s Aaron Blake reported on Monday, this claim is false. There have been, at most, three deaths that may be linked to the COVID vaccine in the entire country. That is just one-third the number of people shot to death in last month’s San Jose massacre. Blake notes that Benitez likely derived this myth from Fox News’ Tucker Carlson, who manipulated data to misleadingly suggest a link between COVID vaccines and death. Carlson’s lies have now crossed over into a major Second Amendment decision.
It should not come as a shock that Benitez regurgitated Carlson’s misinformation. The judge is widely known as a crank to attorneys who have tried cases in front of him. One told me: “I’ve appeared in front of 30 federal judges in my career. He was the most contemptuous, dimwitted one I’ve ever been in front of. He clearly opposed our case and tried to impeach our experts in front of the jury, but he wasn’t good enough to succeed at it. We won our case.”
2. Wounds from assault weapons are not especially lethal. According to Benitez, California lacks a real interest in banning assault weapons because they are not “unusually dangerous.” (He dismissed the label assault weapons, deeming it an epithet, and suggested “anti-crime guns” instead.) The judge wrote that “the injuries from firearms like the AR-15” are “no different from other firearms that are common and lawful to own.”
The growing number of ER doctors who have treated mass shooting victims know this is a lie. A typical AR-15 bullet travels three times faster than a typical 9 mm handgun bullet, imparting substantially more energy. The result is carnage; AR-15 bullets disintegrate bones, destroy organs, and leave gaping exit wounds that increase the risk of bleeding out. As a doctor who treated Parkland victims wrote in the Atlantic:
The bullet from an AR-15 passes through the body like a cigarette boat traveling at maximum speed through a tiny canal. The tissue next to the bullet is elastic—moving away from the bullet like waves of water displaced by the boat—and then returns and settles back. This process is called cavitation; it leaves the displaced tissue damaged or killed. The high-velocity bullet causes a swath of tissue damage that extends several inches from its path. It does not have to actually hit an artery to damage it and cause catastrophic bleeding. Exit wounds can be the size of an orange.
Benitez dismissed these wounds as “no different” from injuries incurred by the typical handgun.
3. Citizen militias are alive and well in the U.S. When the Second Amendment was ratified, its primary purpose was to protect state militias from federal interference. That’s one reason why the amendment begins by explaining that the right to bear arms exists to preserve a “well regulated Militia.” Today, the militia clause is often simply ignored by gun enthusiasts, who prefer to read the Second Amendment as an individual guarantee.
Benitez, by contrast, seeks to have it both ways. “The versatile AR-15 type of modern rifle is the perfect firearm for a citizen to bring for militia service,” the judge wrote. And because assault weapons promote “militia readiness,” California may not criminalize them—just in case citizens need to come together to defend the homeland. “It has been argued that citizens with nothing more than modern rifles will have no chance against an army with tanks and missiles,” Benitez wrote:
But someone forgot to tell Fidel Castro who with an initial force of 20 to 80 men armed with M-1 carbines, walked into power in Havana in spite of Cuba’s militarized forces armed with tanks, planes and a navy. Someone forgot to tell Ho Chi Minh who said, “Those who have rifles will use their rifles. Those who have swords will use their swords. Those who have no swords will use their spades, hoes, and sticks,” and eventually defeated both the French and the United States military. Someone forgot to tell the Taliban and Iraqi insurgents.
It is unclear quite how these examples are relevant to the present-day U.S. Perhaps Benitez envisioned a foreign army invading the country, driven away not by the armed forces but by ragtag bands of civilians carrying AR-15s. Or perhaps he was gesturing toward the insurrectionist theory of the Second Amendment, the anachronistic notion that civilians should assassinate political leaders who descend into tyranny (in the eyes of their well-armed critics). Either way, Benitez’s reverie of 21st century citizen militias rising up, assault weapons in hand, to topple enemies both foreign and domestic lies in the realm of fantasy.
4. Americans need assault weapons for safety, just like they need seat belts and smoke detectors. Reading Benitez’s opinion, one might think that California has effectively outlawed all firearms. In truth, the state permits adults to purchase a wide range of firearms, including semi-automatic handguns. But Benitez wrote that these alternatives pale in comparison with assault weapons, which, he insisted, provide unparalleled protection against crime. He reached this conclusion by rejecting actual evidence on the record and instead developing his own facts, seemingly out of thin air. For instance, Benitez rejected a study that found that most people need just 2.2 shots when using a gun in self-defense. He called this finding “a myth” because it rested partly on news reports of shootings and included incidents when no shots were fired. The study, he wrote, “fails the scientific method.”
Benitez then conducted his own study, which took place entirely in his mind. “Simply brandishing such a weapon may cause an intruder to flee precisely because it appears to be dangerous and fully loaded,” he declared. “It is difficult to imagine the same psychological effect on a home invader (or two invaders) from brandishing a 2-shot derringer. It is a reasonable inference that the visual threat presented by a homeowner holding a modern rifle with a large magazine makes it an effective deterrent without firing a shot.” The judge did not explain why his “reasonable inference” passes the scientific method.
Even if the 2.2 shot figure were correct, Benitez added, it wouldn’t matter. “One could drive 100,000 miles without needing seat belts. But when the unexpected collision occurs, seat belts are really needed,” he wrote. “One could live 100 years without needing a smoke detector, but when fire starts in the middle of the night, a smoke detector is really needed. A person may not need more than 2.2 shots to defend themselves in the average situation. Yet, sometimes more than 2.2 shots—sometimes much more—are needed.”
5. Banning assault weapons leads to mass rape. A key theme of Benitez’s opinion is that “perspective is important”: We pay too much attention to mass shootings and too little to home invasions. “It begs the question,” he asked, “are the lives of home invasion victims worth less than the lives of mass shooting victims?” To illustrate this point, Benitez cited FBI statistics that between 2003 and 2007, 7,700 women were raped during a home invasion. If all those women had “been armed with an assault weapon,” the judge wrote, they “may not have suffered a violent victimization.”
The argument here is that assault weapon bans leave women exponentially more vulnerable to rape. “Imagine calculating these figures” for the entire life span of California’s assault weapon ban, Benitez mused. To his mind, California’s law is apparently responsible for thousands upon thousands of rapes. He does not, however, provide evidence to support this causal link.
These peculiar asides take Benitez far outside the mainstream of the federal judiciary—which, despite Donald Trump’s influence, has not yet deteriorated to this new low. But it’s worth noting that, rhetorical excess aside, Benitez’s bottom line is an outlier, too. Other federal courts have found that assault weapon bans are perfectly constitutional. That is no surprise: In D.C. v. Heller, the Supreme Court explicitly acknowledged that “M-16 rifles and the like” may be banned, and the AR-15 is extremely similar to the M-16. Benitez presumably hopes that the Supreme Court’s new conservative supermajority will erase this caveat and embrace his radical interpretation of the right to bear arms.
If there is any upside to this decision, though, it is that Benitez’s delusions undermine his own credibility. This Supreme Court is undoubtedly eager to expand the Second Amendment. Justice Brett Kavanaugh, the median justice in terms of ideology, wrote that the District of Columbia’s assault weapon ban is unconstitutional while serving on the Court of Appeals. But it is hard to envision the justices using this case as a vehicle to establish a constitutional right to buy AR-15s now that Benitez has tainted it with lunacy.